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the firm assets transferred to the purchasing partner until his individual debts are paid in full, is sound on principle however unjust it may be in its practical application, for an abundance of cases hold that the separate creditor bas, in case of insolvency or bankruptcy, or when assets are marshalled in equity, the same priority over partnership creditors with respect to separate or individual property that firm creditors have over individual creditors with regard to firm property. Kirby v. Shoomaker, 3 Barb. Ch. 49; Wilder v. Keeler, 3 Paige, 167; Brock v. Bateman, 25 Ohio St. 609; McCormack's Appeal, 55 Penn. St. 252; Union Nat. Bank v. Bank of Commerce, 94 Ill. 271; Gillaspy v. Peck, 46 Iowa, 462; Irby v. Graham, 46 Miss. 427; Tillinghast v. Champlin, 4 R. I. 173, 190; Pennington v. Bell, 4 Lused, 20; Woddrop v. Price, 3 Dess. 207; Toombs v. Hill, 28 Ga. 371; Holland v. Fuller, 13 Ind. 195; Matter of Risser, 19 Hun, 202; Davis v. Howell, 20 Am. Law Reg. (N. S.) 461 (N. J. Ch.); Mavill v. Neill, 8 How. 414; Bowker v. Smith, 41 N. H. 120; Miller v. Clarke, 37 Iowa, 325; Holton v. Holton, 40 N. H. 77. Numerous other cases might be cited, but these will suffice. There are however authorities which hold the contrary doctrine with reference to individual creditors holding that they are entitled to no priority of payment out of individual assets as against partnership creditors. Wisham v. Lippincott, 1 Stock. (N. J.) 353; Morris v. Morris, 4 Gratt. 293; Higgins v. Rector, 47 Tex. 361; Camp v. Grant,21 Conn. 41, 60; Bardwell v. Perry, 19 Vt. 292; Cleghorn v. Ins. Bank of Columbus, 9 Ga. 319; Emamel v. Bird, 19 Ala. 596.

Of course the doctrine giving separate creditors priority does not apply if a partnership creditor secures a legal lien on the individual property. In this respect the rule differs from the rule regulating the priority of partnership creditors. Securing a legal lien on firm property will not confer upon the individual creditors any preference. The lien is simply upon the partner's interest in the firm assets after payment of firm debts. while the firm creditor who obtains a legal lien on individual property of one of the partners secures priority as against the separate creditors of that partner, even though he is insolvent. Davis v. Howell; Wisham v. Lippincott, 1 Stock. 353; Randolp v. Daly, 1. C. E. Green, 313; National Bank v. Sprague, 5 id. 13; Howell v. Teel, 2 Stew. Eq. 490; Allen v. Wells, 22 Pick. 450; Newman v. Bagley, 16 id. 570; Stevens v. Perry, 113 Mass. 380.

But see contra Jarvis v. Brooks, 23 N. H. 136; Crockete v. Crain, 33 id. 550. We come now to the consideration of the question whether the promise by one partner to his copartner to pay firm debts does not render the promising partner individually liable to firm creditors without any formal adoption on their part of such promise before suit brought. The authorities seem to be clear to the effect that such promise creates a cause of action in favor of the creditor against the promisor, even though he is not a party to the agreement. Lawrence v. Fox, 20 N. Y. 268; Claflin v. Ostrom, 54 id. 581; Arnold v. Nichols, 64 id. 117. But see Merrill v. Green, 55 id. 270; Simson v. Brown, 68 id. 355. There is ample consideration for the promise running directly from the creditors themselves. Not only do they lose their equitable lien on the firm assets, but the retiring partner ceases to be liable to them as principal debtor from the moment that notice of the assumption of the firm debts is received by them, and thereafter he is liable only as surety with all the rights of a surety, and will be discharged by any act or omission on the part of the creditors which would release a surety. Smith v. Shelden, 35 Mich. 42; Millerd v. Thorn, 56 N. Y. 402; Harris v. Lindsay, 4 Wash. C. C. 271; Colgrove v. Tallman, 67 N. Y. 95.

It is submitted that the creditors have a right to recover directly on the agreement of assumption

under the authorities; and that they should be held to have this right because they are injured by the transaction, losing their equitable lien and the liability of one partner as principal debtor, and should therefore have the right to enforce this individual promise to pay firm debts as compensation for such injury; and further that the purchasing partner should be held liable individually, for the reason that in the forum of conscience he is the real and only debtor. But the consideration, which of all others is entitled to the most weight in the decision of this question, is the manifestly gross injustice which (when the firm is solvent and the purchasing partner insolvent) inevitably results from the doctrine that the assumption does not create an individual liability in favor of firm creditors. The inevitable consequence of that doctrine is not only to destroy the firm creditor's lien, but in addition to confer upon the individual creditors priority of payment out of the very property on which the firm creditors once held a paramount equitable lien, and on the strength of which they may have given credit to the firm. It is no answer to the claim that the assumption of the firm debts creates an individual liability which can be enforced by firm creditors, that the joint liability of the partners still exists. It is not necessary that the third party to avail himself of a promise made for his benefit to another should surrender his claim against his original debtor. The liability of a grantee upon the assumption of a mortgage is not dependent upon the extinguishment of the grantor's liability for the mortgage debt. They are both liable. But this is too obvious to require argument, and it is well settled. Collyer says, that where a debt is converted from joint to several, or vice versa without extinguishment of the original debt, the creditor may elect whether he will prove it according to its old or new quality. Coll. Bart., 933, p. 1470, and cases cited. This election may be made after bankruptcy, and at any time until after a dividend is declared (§ 937, p. 1473) and cases cited. It is thus apparent that if the mere assumption creates an individual liability directly to the firm creditors, there can be no doubt as to their right to share equally with the individual creditors who were such originally. That such an assumption does per se create an individual liability, and entitle the firm creditors to share equally with individual creditors in all property of the purchasing partner, whether acquired from the firm or not is well settled by the bankrupt courts in this country. Matter of Lloyd, 31 Alb. L. J. 293; In re Downing, 3 N. B. R. 181, 183; In re Long, 9 id. 227; In re Rice, id 337; In re Collier, 12 id. 266. And in Warren v. Farmer, 100 Ind. 593, the same doctrine is expressly recognized and applied. This case also enunciates the rule that the trausfer by one partner to the other of his interest in the firm property so effectually converts it into individual property, that in case of bankruptcy or of the marshalling of the assets in case of insolvency the individual creditors have a lien on old firm assets superior to the claim of firm creditors, the partner not having assumed them. To same effect is Weyer v. Thornburgh, 15 Ind. 124. But suppose the purchasing partner does not assume the payment of the partnership debts, can firm creditors share equally in such a case? The failure of the partner to agree to pay the partnership debts should not operate to the prejudice of the firm creditors. Their right to share ratably with individual creditors in such a case can be founded upon the well settled principle, that in equity partnership debts are several as well as joint. Hilliker v. Francis, 65 Mo. 604; Irby v. Graham, 46 Miss. 427; Tillyan v. Laverty, 3 Fla. 72; Haralson v. Campbell, 63 Ala. 278; Freeman v. Stewart, 41 Miss. 138; Wisham v. Lippincott, 1 Stock. (N. J.) 354: Kent v. Wells, 21 Ark. 411; Silverman v. Chase, 90 111. 37.

The law cannot be regarded as settled in this country against the right of the firm creditors to share equally with individual creditors to the extent of the old firm assets which remain in specie, but principle is certainly against it unless the doctrine can be sustained on this ground, that in equity partnership debts are several as well as joint. There is a class of cases in which the firm creditors have been held to have a right to share equally with individual creditors, and that is where there are no firm assets and no solvent partner. Of course they are entitled to this equality of payment in such a case, even though there is no iudividual or separate liability whatever, and the debts are purely and simply joint obligations of the firm. Brock v. Bateman, 25 Ohio St. 609; Smith v. Mallory, 24 Ala. 628; Higgins v. Rector, 47 Tex. 361; In re McEwen, 6 Bis. 294; In re Knight, 2 id. 518; Daniel v. Townsend, 21 Ga. 155; Pohlman v. Graves, 26 Ill. 405; In re Downing, 2 Dill. 126; Ex parte Sadler, 15 Ves. 52; Coll. Part., § 924. This exception to the rule is repudiated in Indiana. Warren v. Farmer, 100 Ind.

593.

But where there is a solvent partner, but he is dead, the firm creditors can take their proportionate share with individual creditors. Coll. Part., § 924; Ex parte Bauerman, 3 Deac. 476.

erty of O. M. Westover thus lost its character of partnership property, and became the separate property of the individual. To same effect is Sigler v. Bank, 8 Ohio St. 511. But see Phelps v. McNeely, 66 Mo. 554. The court expressly declared that fraud would prevent the destruction of the firm creditor's equity. This was held in Calkin v. Conner, 18 N. Y. Week. Dig. 24, and in this case the court decided that the transaction would be fraudulent if made for the purpose of enabling the insolvent partner to pay his individual debts out of the firm assets; and in Stanton v. Westover the court intimated that the mere fact of the purchasing partner's insolvency if known to him, and the other partner, would be conclusive evidence of fraud, unless there was evidence of good faith. "The insolvency of the purchasing partner, if known to him and to the seller, might very well be strong evidence of an intent to defraud the partnership creditors and become conclusive upon that question if there was no explanation." The decision of the Court of Appeals in this case overrules a dictum of the same court in Menagh v. Whitwell, 52 N. Y. 146. Rapallo, J., says in that case, at page 161: "The case differs materially from a sale by a retiring partner to his copartner who is personally liable for the debts directly to the creditors; but even such a sale is valid only when there is no insolvency at the time. To sell to an insolvent partner would be a clear fraud."

In Hapgood v. Cornwell, 48 Ill. 64, the court held that the transfer was not fraudulent and void, though made for the express purpose of enabling the partner to pay his individual debts with the firm property. All the cases agree that in the absence of fraud the transfer is valid and effectual to destroy the lien of the firm creditors. Kimball v. Thompson, 13 Met. 283; Flack v. Chavron, 29 Md. 311; Jones v. Fletcher, 42 Ark. 451.

This case of Menagh v. Whitwell is the case in which the court, or rather one of the court expressed a preference for the doctrine that the equity of partnership creditors is independent. Stanton v. Westover overthrows this dictum for the reason that that case cannot be sustained upon any other theory than that the firm creditors are dependent for their lien

The fact that the purchasing partner is insolvent will not as a matter of law render fraudulent and void the purchase or preserve the equitable lien of the firm creditors, although the effect of the transaction is to transfer their claims from a solvent to an insolvent estate. Of course they will suffer no injury from the insolvency of the purchasing partner, unless his individual property and the firm assets which he buys are less than his total indebtedness individually and as partner. But this was the case in Stanton v. Westover (N. Y. Ct. of App., Jan. 19, 1886), 2 Cent. Rep. 139. W. G. & O. M. Westover were partners. W. G. sold out to O. M., each assuming half of the debts. At the time of the transfer O. M. was wholly insolvent as an individual, the firm being solvent; and his liabilities as an invividual and as a member of the firm exceeded all of his assets individually and as a member of the firm, and yet the court held that there being no fraud, the transfer was valid and the firm creditors' equit-upon the equity of the partners. If their lien were able lien destroyed. The action was brought by the plaintiff as receiver in supplementary proceedings under a judgment against O. M. Westover on a partnership debt to set aside a certain transfer assignment and mortgage, so far as they affected the firm property sold to O. M. Westover by W. G., and which remained in specie, the transfer, assignment and mortgage, all giving the individual creditors of O. M. Westover preference. The court said: "The judgment in this action is fully sustained by the case of Dimon v. Hazard, 32 N. Y. 65. It was there held that where one of two partners retires from business, relinquishing to the other all his interest in the partnership property, the remaining partner acquires the same dominion as if it had ever been his own separate property; that the transfer being made in good faith, the title vests in the remaining partner as his own private estate, free from any lien or equity in favor of partnership creditors; and that such remaining partner may lawfully transfer such property in payment of his individual debts." * * *By force of this arrangement neither party retained any equity against the other. By their joint consent the goods became the individual property of the remaining partner, and the $900 in notes and accounts, the individual property of the retiring partner, and no partnership property remained. Each by the agreement of transfer substituted for the partner's equity the personal contract of the other to pay, and had left only the right to enforce the contract against the individual contracting. The prop

independent, then a transaction which destroyed that lien and their right to collect their claims in full and turned them over to an insolvent estate, would be clearly fraudulent; and the decision in Stanton v. Westover could not be sustained. But when this case is considered in the light of the principle that the creditor's equity is a derivative equity, it becomes at once a sound and logical decision. Ex parte Snow, 1 C. B. 511, is in harmony with this decision. In this case the remaining partner was declared a bankrupt in a single week after the dissolution, and must have been insolvent at the time the transfer was made; but the court decided that as the transaction was bona fide the lien of the partnership creditors was gone. See also Coll. Part., § 916. The fact of the insolvency of the firm does not affect the question. The transfer may be valid and effectual to destroy the firm creditor's lien nevertheless. Coll. Part., § 916. Collyer says: "The effect of conversion of joint into separate estate will not be altered by the circumstance, that at the time it took place the partners knew that the firm was insolvent, for as we have already seen a conver sion under such circumstances is not necessarily a fraud upon creditors." When the retiring partner simply sells his interest and takes the promise of the purchasing partner to pay the firm debts, his lien or equity is forever gone. Hapgood v. Cornwell, 48 Ill. 64; Vesper v. Kramer. 31 N. J. Eq. 420; Smith v. Edwards, 7 Humph. 106; Griffith v. Buck, 13 Md. 102: Goembell v. Arnett, 100 Ill. 34; Croone v. Bivens, 2

gage, on the 30th day of April, 1836, and he and his successors in the title have continued in possession ever since. Lewis Wright, the mortgagor,died intestate about forty years ago. His heirs-at-law are the defendants to this suit. Four of them have appeared and answered, insisting that the land is still subject to their equity of redemption. Their claim in this regard rests upon the following facts: The complainant, on the 31st of October, 1885, made a contract to sell and convey the land, which contract required her, for the purpose of perfecting her title, to bring a suit, and obtain a decree of strict foreclosure against the heirs-at-law of the mortgagor: such suit was subsequently brought, but was afterward, on the 17th of March, 1886, and after the defendants had appeared to it, dismissed on the complainant's own motion. The defendants insist that the institution of the suit to foreclose, taken in connection with the agreement making it the duty of the complainant to bring such suit, constituted such an admission of their right of redemption as amounted to a conclusive waiver of any bar to such right which

Head, 339; Andrews v. Mann, 31 Miss. 322; Maquoketa v. Willey, 35 Iowa, 323; Parker v. Merritt, 105 Ill. 293. And of course he cannot by action compel payment of firm debts out of old firm assets. Andrews v. Mann, 31 Miss. 322; Parker v. Merritt, 105 Ill. 293; Croone v. Bivens, 2 Head, 339; Smith v. Edwards, 7 Humph. 106. But it has been held that the contract of sale from one of two partners to another may be of such a nature that the retiring partner's lien on the firm assets for the payment of firm debts is preserved. Buck Stove Co. v. Johnson, 7 Lea, 282; Shackelford v. Shackelford, 52 Gratt. 481; Parker v. Merritt, 105 Ill. 293; Rogers v. Nichols, 20 Tex. 719. It is true that in this case a firm creditor was not insisting upon the lien. The retiring partner himself asked, in an action brought to construe the will of the purchasing partner, who had died since the transfer, that the old partnership assets in the hands of the administrator be applied to the payment of partnership debts. The relief prayed for was granted, and a receiver was appointed to take possession of such assets in the hands of the administrator and pay thereout the firm creditors. While a part-previously existed. nership creditor was not insisting on the equity, yet the case decides that he might have enforced his equitable lien, because it decided that the retiring partner's equity still subsisted, and the creditor's equity exists as long as the partner's equity continues and fails only when that has been surrendered or destroyed. That the lien of firm creditors is preserved in such a case where the partner reserves his lien has been expressly decided. Buck Stove Co. v. Johnson, 7 Lea, 282.

In Parker v. Merritt and Rogers v. Nichols, the retiring partner and not a firm creditor was insisting on the lien, and in each case, as in Shackelford v. Shackelford, the court held that he had preserved his lien when he sold to his copartner.

POUGHKEEPSIE, N. Y.

GUY C. H. CORLISS.

The complainant moves to strike out that part of the answer which asserts that the defendants still have a right to redeem, on the ground that the matters there alleged are impertinent, and constitute no defense. On the admitted facts of the case, it is clear that the title which the complainant now holds was at one time subject to an equity of redemption, and it is equally certain that this equity was subsequently barred by lapse of time. The defendants admit that the person holding the mortgage executed in 1830 took possession under his mortgage of the laud in question in 1836, and that he and those who succeeded to his rights have continued in the uninterrupted possession of the land from that time up to October, 1885, a period of over forty-nine years, and that during the whole of this long period neither the mortgagor, nor those standing in his rights, either exercised, or attempted to exercise, their right of redemption. They

STATUTE OF LIMITATIONS — POSSESSION BY also admit that neither the mortgagee, nor those

MORTGAGEE.

NEW JERSEY COURT OF CHANCERY.

MAY TERM, 1886.

CHAPIN V. WRIGHT.*

standing in his rights did, at any time during the same period, do or say any thing which either directly or indirectly admitted or recognized that the land was subject to an equity of redemption. These admissions render it perfectly clear that for a period of over twenty-nine years prior to the 31st of October, 1885, the equity which the defendants now claim stood wholly barred and extinguished; for it is a principle of equity jurisprudence, authoritatively settled and universally recognized, that the laches and non-claim of the rightful owner of an equitable estate, who is under no disability, and in a case free from fraud, for a period of twenty years, will where the person in

Twenty year's possession of the premises by a mortgagee, under his mortgage, pursuant to the eighteenth section of the statute of limitations, bars the mortgagor's equity of redemption, and the extinguishment of the mortgagor's equity effected by this statute, unlike the ex tinguishment effected by mere judicial action, is not subject to be waived by an incautious admission of the mort-possession has held adversely to such owner, without

gagee.

ON

N motion to strike out part of the defendant's answer, heard on notice given pursuant to No. 215 of the rules.

Benjamin A. Vail, for motion. Alan H. Strong, for defendants. VAN FLEET, V. C. The complainant brings this suit to quiet her title to certain land. Her bill was filed under the act of 1870. Rev., p. 1189. Instead of simply alleging that she is in peaceable possession of the land in question, as owner, she has given a full history of her title. It originates, as her bill states, in a mortgage made on the 21st day of June, 1830, by Lewis Wright and wife to Timothy Herbert, to secure the payment of $165 on the 21st day of June, 1831. The mortgage conveyed the fee. The mortgagee took possession of the mortgaged premises, under his mort*S. C., 41 N. J. Eq. 438.

in any way recognizing his right, constitute a conclusive bar to all right to equitable relief. In support of a principle so generally recognized, only a leading case or two need to be cited. Cholmondely v. Clinton, 2 Jac. & Walk. 1; S. C., on appeal, id. 189; Elmendorf v. Taylor, 10 Wheat. 152.

This principle applies in all its force to the equity of redemption of a mortgagor. Twenty years' possession by a mortgagee of the mortgaged premises, under his mortgage, without accounting to the mortgagor for rents or profits, or otherwise recognizing his mortgage as a subsisting lien, will, where the mortgagor is under no disability, bar his equity of redemption. Demarest v. Wynkoop, 3 Johns. Ch. 129; 2 Jones Mortg., § 1144; Ang. Lim., § 456.

Although there are but few statutes limiting the time within which equitable remedies must be enforced, yet courts of equity have from the earliest times given effect to a lapse of time as a bar to the remedies which they administer, and they as a general rule

measure the period of laches or non-claim which will be sufficient to bar an equitable action by the period fixed by the statute of limitations for the extinguishment of a similar right of action of law. And as twenty years' adverse possession will bar a right of entry or an action of ejectment, courts of equity have, in analogy to the statute of limitations, adopted that as the period which shall be sufficient to bar an equity of redemption. This rule however is a mere judicial regulation-it is founded on the maxim, interest reipublicæ ut sit finis litium—and like other judicial rules is subject to change by the power which created it whenever that course may seem necessary for the furtherance of justice. The courts have accordingly annexed to this rule the following important qualification: if a mortgage in possession shall, after the equity of the mortgagor has become barred by lapse of time, admit either by word or act that his mortgage is still a subsisting lien, the bar previously existing will be considered to have been waived, and the equity of the mortgagor revived. 2 Jones Mortg., § 1163. And an admission having this effect will be considered to have been made if the mortgagee institutes proceedings either by suit or otherwise, to foreclose his mortgage, the reason assigned being that such act is entirely inconsistent with any pretension on his part that his possession had ripened into a title. 2 Jones Mortg., § 1170; Aug. Lim., § 458; Calkins v. Isbell, 20 N. Y. 147. And it has also been held that an admission entitled to like effect may be made by the mortgagee offering to purchase the mortgagor's equity of redemption. Ang. Lim., § 458.

and at any time before his equity is lost by laches, to redeem the land which he has conveyed in pledge by paying the mortgage debt. This right however is a pure equity, cognizable alone by courts of equity. A mortgagor can assert it in no other forum. The statute then was manifestly designed to regulate and limit an equitable remedy, to fix the period within which a mortgagor must, after his mortgagee has taken possession of the mortgaged premises, exercise his equity of redemption, or lose it, and courts of equity are therefore as much bound to respect it and give effect to it as they are to observe and enforce any other legislative mandate issued to them. There can be no doubt that this statute binds this court, and that this court must take it as it finds it, and give effect to it according to its plain words, adding nothing to it and taking nothing from it.

The statute is an old one, having been passed in 1799, and stands to-day in the very words in which it was originally enacted. Patent Laws, 354. Its meaning is so plain that its construction has never, so far I can discover, been the subject of doubt or discussion. It says, as plainly as language can speak, that twenty years' possession by a mortgagee, under his mortgage, after the mortgagor has made default, shall bar the mortgagor's equity of redemption, and that when his equity is once extinguished in this way, it shall remain extinguished forever. There is nothing in its words, and nothing in its spirit or purpose, which will justify even a suspicion that the Legislature which passed it intended that the bar which it created should, after it becomes complete-after the mortgagee's legal estate becomes perfect by being freed from the mort gagor's equity-still be subject to be waived, at least by any thing which the mortgagee may happen to do with intent to strengthen his title; on the contrary, I think it is evident that what was meant was that when the mortgagor's equity was once extinguished it should remain absolutely blotted out forever. This, I think, was Chancellor Williamson's construction of it. He said, in Bates v. Conrow, 3 Stock. 137, that twenty years' possession by a mortgagee, under his mortgage, by force of this statute, bars the mortgagor's equity of redemption, and he gave effect to his bar in that case,

Applying the rule as thus qualified to the case in hand, it would seem to be clear that the defendants are entitled to the protection they ask, unless the sufficiency of their defense is to be judged by some other rule, or the trial of the equity which they claim will necessarily involve the investigation of transactions occurring so long ago that it will be impossible for the court, in consequence either of the loss or evidence, or of the very imperfect and indeterminate character of that to which resort must be had, to ascertain the truth concerning them with that degree of certainty which will enable it to do at least approximate justice. The latter alternative need not how-regardless of the fact that an application had been ever be discussed, for in my judgment the question whether or not the defendants are entitled to the equity which they claim must be decided in conformity to the plain direction of a positive law. The eighteenth section of the statute of limitations declares: "That if a mortgagee, and those under him, be in possession of the lands, tenements and hereditaments contained in the mortgage, or any part thereof, for twenty years after default of payment by the mortgagor, then the right or equity of redemption of the mortgagor therein shall be forever barred." Rev., p. 597.

The regulation which this statute prescribes concerns a pure matter of equity. As between a mortgagee and a mortgagor, the legal title to the mortgaged premises is in the mortgagee. Originally, it will be remembered, the most rigorous principles of the common law respecting estates granted on condition were applied to mortgages, and that it was at one time the settled law of England that if a mortgagor did not pay the money secured by his mortgage on the very day appointed for its payment, the land, by the mere force of his default, became vested absolutely in the mortgagee freed from the condition, or in the words of the books, "the land was taken to him forever, and so was dead to him." 2 Coke Litt., § 332, tit. "Estates." 205 a.

Now however, according to the law of modern times, a mortgagor bas a right, after condition broken,

made to the mortgagor, after the mortgagee had been in possession for over twenty years, to convey his interest in the mortgaged premises to the mortgagee, to save the mortgagee the expense of a suit to foreclose his mortgage.

But whether my interpretation of this case is correct or not, one thing is certain, the law under consideration is a statute of repose, enacted in the interest of peace, and to promote the security and stability of titles to land by preventing litigation respecting stale claims. This being its obvious design, it would, in my judgment, be a direct violation of its most conspicuous purpose, to declare that a mortgagor might not only lie by for twenty years after his mortgagee had taken possession of the mortgaged premises, aud neg. lect for that period to assert his rights, but that he could also remain inactive for an additional period of twenty-nine years, and still be able in case his mortgagee should subsequently, by an incautious word or act, seem to admit that the mortgage was still a subsisting lien, to successfully assert the equity which the statute plainly intended on the lapse of twenty years to utterly obliterate and destroy.

It may be proper to say a word respecting the posi tion which the parties to this litigation occupy toward each other.

The defendants seek to interpose their lost equity against a right claimed by the complainant. There can be no dispute that it is a principle of equity juris

prudence, of almost universal application, that he who asks equity must do equity; but this principle, in my judgment, has no application to this case, for by the peremptory mandate of this statute a mortgagor whose mortgagee has for twenty years been in possession of the mortgaged premises under his mortgage has no equity. The lapse of that period of time, by force of the statute, extinguishes absolutely and forever all equitable right which he previously possessed. The defendants therefore have no equity to urge against the complainant.

The complainant's motion must be granted with costs.

ute have also been applied to bills to redeem, as suspension by war. Hall v. Denckla, 28 Ark. 506; Montgomery v. Bruere, 1 South. 266; see Reynolds v. Baker, 6 Cold w. 221, 229; Dean v. Nelson, 10 Wall. 158; or a new promise in writing (Hart v. Boyt, 54 Miss. 547; Mahon v. Cooley, 36 Iowa, 479); or infancy and coverture (Proctor v. Couper, 2 Vern. 376; White v. Ewer, 2 Vent. 340; Jenner v. Tracey, 3 P. Wms. 287, note; Cornel v. Sykes, 1 Rep. in Ch. 193; Hall v. Caldwell, 7 Can. L. J. 42; Demarest v. Wynkoop, 3 Johns. Ch. 129; Hertle v. McDonald, 2 Md. Ch. 128; 3 Md. 366; Snavely v. Pickle, 29 Gratt. 27, 39; Auding v. Davis, 38 Miss. 574; Hanford v. Fitch, 41 Conn. 486; Wells v. Morse, 11 Vt. 9); or non-residence or absence from the State (Waterson v. Kirkwood, 17 Kans. 9; Clinton County v. Cox, 37 Iowa, 570; Phillips v. Sinclair, 20 Me. 269; Whalley v. Eldridge, 24 Minn. 358; see Parsons v. Nog

but not under the English statute (Kinsman v. Rouse, L. R., 17 Ch. Div. 104; Forster v. Fatterson, id. 132; see Rafferty v. King, 1 Keen, 601); nor that of Alabama (Hunt v. Ellison, 32 Ala. 173, 190), or Georgia (George v. Gardner, 49 Ga. 441), or New York. Depey v. Dewey, 2 T. & C. 515; 56 N. Y. 657; Acker v. Acker, 81 N. Y. 143.

Express statutes limit the time for a mortgagor to redeem in England, Alabama, California, Georgia, Kentucky, Mississippi, North Carolina and Tennes

NOTE.-A mortgagee who enters into possession of the premises and holds uninterruptedly for twenty years without an admission in the meanwhile that his tenure is as mortgagee, may by analogy to the stat-gle, 23 id. 328); or fraud (Guinn v. Locke, 1 Head. 110); ute of limitatious, and in the absence of an express statute relating thereto, claim title, and the mortgagor's right to redeem is barred. Blake v. Foster, 2 B. & B. 387; Chapman v. Corpe, 41 L. T. (N. S.) 22; Guthrie v. Field, 21 Ark. 379; Gunn v. Brantley, 21 Ala 633; Arrington v. Liscom, 34 Cal. 365; Taylor v. McClain, 60 Cal. 651; 64 id. 513; Bunce v. Wolcott, 2 Conn. 27: Morgan v. Morgan, 10 Ga. 297; Hallesy v. Jackson, 66 Ill. 139; Montgomery v. Chadwick, 7 Iowa, 114; Crawford v. Taylor, 42 id. 260; Roberts v. Littlefield, 48 Me. 61; Hertle v. McDonald, 2 Md. Ch. 128; 3 Md. 366; Crook v. Glenn, 30 id. 55; Stevens v. Dedham Inst., 129 Mass. 547; Reynolds v. Green, 10 Mich. 355; Hoffman v. Harrington, 38 id. 392; McNair v. Lot, 34 Mo. 285; Tripe v. Marcy, 39 N. H. 439; Miner v. Beekman, 50 N. Y. 337; Bailey v. Carter, 7 Ired. Eq. 282; Yarborough v. Newell, 10 Yerg. 376; Knowlton v. Walker, 13 Wis. 264; Ross v. Norwell, 1 Wash. (Va.)14; Hughes v. Edwards, 9 Wheat. 489; Fox v. Blossom, 17 Blatch. 352; Amory v. Lawrence, 3 Cliff. 523; see Doe v. De Veber, 3 Allen (N. B.) 23; Miner v. Beekman, 14 Abb. Pr. (N. S.) 1; Hammonds v. Hopkins, 3 Yerg. 525; Wood v. Jones, Meigs, 513; Anding v. Davis, 38 Miss. 574.

But the mortgagee's acts in taking possession must be unequivocal, and therefore if he enters as a tenant of the mortgagor that relation is presumed to continue unless rebutted. Ayres v. Waite, 10 Cush. 72, Anderson v. Lanterman, 27 Ohio St. 104; see Shields v. Lozear, 5 Vr. 496; Orde v. Hemming, 1 Vern. 418; Sanders v. Sanders, 44 L. T. (N. S.) 171, L. R., 19 Ch. Div. 373; Clows v. Hughes, L. R., 5 Exch. 160; Edwards v. Ray, 12 Fed. Rep. 42, Stedman v. Gassett, 18 Vt. 346; but a lease taken after the expiration of the twenty years is not an acknowledgment (Jarvis v. Albro, 67 Me. 310; see Strong v. Hooe, 41 Wis. 659); nor pay. ment of rent by the mortgagor's tenant to the mortgagee after notice from the latter to the tenant to do so. Harlock v. Ashberry, L. R., 19 Ch. Div. 539; see Smith v. Eggington, L. R., 9 C. P. 45; or allowing the mortgagor (his mother) to occupy on account of her relationship. Philbrook v. Clark, 77 Me. 176.

Merely paying the taxes ou vacant lands is insufficient. Bollinger v. Chouteau, 20 Mo. 89; Moore v. Cable, 1 Johns. Ch. 385, 387; Locke v. Caldwell, 91 Ill. 417; Brown v. Rose, 48 Iowa, 231: see Mahan v. Fraser, 17 U. C. C. P. 408; Clark v. Potter, 32 Ohio St. 49; Albright v. Cobb, 34 Mich. 316; Green v. Pettingill, 47 N. H. 375; Foulke v. Bond, 12 Vr. 527.

Acts by the mortgagee's devisees or executors, as
foreclosing after his death, cannot impair bis rights.
Johnson v. Mounsey, 40 L. T. (N. S.) 234; see Heyer v.
Pruyn, 7 Paige, 465; Roddam v. Morley, 1 DeG. & J. 1;
Coope v. Creswell, L. R., 2 Ch. App.) 112; Crooks v.
Watkins, 8 Grant Ch. 340; Erskine v. North, 14 Gratt.
60.
The ordinary exceptions to the running of the stat-

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The following acknowledgments by a mortgagee have been held sufficient to bar him: Stating an account (Palmer v. Jackson, 5 Bro. P. C. 194; Anon., 2 Atk. 333; Barron v. Martin, Coop. Eq. 189; 18 Ves. 326), or letters (Culler v. Cremer, 1 L. J., Ch. 108; Vernon v. Bethell, 2 Eden, 110; Trulock v. Robey, 12 Sim. 402; Stansfield v. Hobson, 16 Beav. 236, 3 DeG. M. & G. 620; see Marwick v. Hardringham, L. R., 15 Ch. Div. 339; Ley v. Peter, 3 H. & N. 101; Barwick v. Barwick, 21 Grant Ch. 39; Thompson v. Bowyer, 9 Jur. [N. S.] 863); or a devise (Lake v. Thomas, 3 Ves. 22; Kohlheim v. Harrison, 34 Miss. 457; see Smart v. Hunt, 4 Ves. 478, note); or written contract or promise (Lyon v. McDonald, 51 Mich. 435; Mosely v. Crocket, 9 Rich. Eq. 339; Kerndt v. Porterfield, 56 Iowa, 412; Schmucker v. Sibert, 18 Kans. 104; Southard v. Pope, 9 B. Mon. 261, 264; Snavely v. Pickle, 29 Gratt. 27; see Murphy v. Coates, 6 Stew. Eq. 424; Ball v. Wyeth, 8 Allen, 275; Hall v. Felton, 105 Mass. 516; Haywood v. Ensley, 8 Humph. 460; Wells v. Harter, 56 Cal. 342); or deed, although between the mortgagee and third parties (Hansard v. Hardy, 18 Ves. 455; Price v. Copner, 1 S. & S. 347; Carew v. Johnston 2 Sch. & Lef. 280, 295; Jayne v. Hughes, 10 Exch. 430; Lucas v. Dennison, 7 Jur. 1122; Cape Girardeau Co. v. Harrison, 58 Mo. 90; Biddel v. Brizzolara, 56 Cal. 374; 64 id. 354; Randall v. Bradley, 65 Me. 43); or mortgage (Palmer v. Butler, 36 Iowa, 576); or a bill brought to foreclose (Conway v. Shrimpton, 5 Bro. P. C. 187; Robinson v. Fife, 3 Ohio St. 551; see Heath v. Pugh, L. R., 6 Q. B. Div. 345; 7 App. Cas. 235); or an answer in equity (Hodle v. Healey, 6 Madd. 181, 1 V. & B. 536; Goode v. Job, 1 El. & El. 6: Dexter v. Arnold, 1 Sumu. 109; 3 id. 152; Stump v. Henry, 6 Md 201, 207; Erskine v. North, 14 Gratt. 60; see Coope v. Creswell, L. R., 2 Ch. App. 112; Giles v. Baremore, 5 Johns. Ch. 545); but not an admission in the answer of a nominal co-defendant (Day v. Baldwin, 34 Iowa, 380); or receiving interest on the mortgage (Pears v. Laing, L. R., 12 Eq. 41; Cann v. Taylor, 1 F. & F. 651; Chinnery v. Evans, 11 H L. Cas. 115; Dowling v. Ford. 11 M. & W. 329; Fox v. Wright, 6 Allen [N. B.] 241; Fisk v. Stewart, 24 Minn. 97; see Gregson v. Hindley, 10 Jur. 383; Harlock v. Ashberry, L. R., 19 Ch. Div. 539; Hutchinson v. Swartswelier, 4 Stew. Eq. 205); or part of the principal (Stump v. Henry, 6 Md. 201; Winchester v. Ball, 54 Me. 558; John

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